R. v. Smith (1987)
Encyclopedia
R. v. Smith, [1987] 1 S.C.R. 1045 is a leading Supreme Court of Canada
decision. The Court struck down a mandatory seven year sentence requirement for the importation of drugs as a violation of the right against cruel and unusual punishment
contrary to section 12
of the Canadian Charter of Rights and Freedoms
. Smith was represented by Vancouver lawyer Anthony P. Serka
.
from Bolivia
. At customs he was searched and the officers found over seven ounces of cocaine. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. The Act had required a minimum of sentence of seven years regardless of the amount found. The provision was challenged on the basis that it violated the Charter.
The issue before the Supreme Court of Canada was whether the mandatory minimum sentence of seven years under section 5(2) of the Narcotics Control Act infringe section 7
, 9
, and 12 of the Charter. Serka was successful in challenging the minimum sentence provision.
, writing for the majority, held that the sentencing provision violated section 12 of the Charter. He noted that when it came to mandatory sentencing it is very important that deference be given except where it is grossly disproportionate. To assess the provision the court should consider both the gravity of the offence, the particular facts of the case, as well as the offender's personal characteristics. The characteristics are particularly important. Lamer speculated that even a young person caught bringing a single joint across the border will be subject to the sentencing provision. This, said Lamer, would subject the first time offender to cruel and unusual punishment.
On applying the section 1
test to the violation, it was found that the provision was rationally connected to the pressing objective of detering drugs importation, but it failed to be proportional. Thus, it was struck down.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision. The Court struck down a mandatory seven year sentence requirement for the importation of drugs as a violation of the right against cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
contrary to section 12
Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. Smith was represented by Vancouver lawyer Anthony P. Serka
Anthony Serka (lawyer)
Anthony P. Serka, Q.C. is a British Columbia lawyer who has appeared as counsel on several significant and high profile criminal cases, including in the Supreme Court of Canada. In R. v. Hutt, [1978] 2 S.C.R. 476, Serka acted for a Vancouver woman accused of soliciting. As a result of the court's...
.
Background
Edward Smith, a twenty-seven year old man with multiple convictions for drug-related offences, was arriving back in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
from Bolivia
Bolivia
Bolivia officially known as Plurinational State of Bolivia , is a landlocked country in central South America. It is the poorest country in South America...
. At customs he was searched and the officers found over seven ounces of cocaine. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. The Act had required a minimum of sentence of seven years regardless of the amount found. The provision was challenged on the basis that it violated the Charter.
The issue before the Supreme Court of Canada was whether the mandatory minimum sentence of seven years under section 5(2) of the Narcotics Control Act infringe section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, 9
Section Nine of the Canadian Charter of Rights and Freedoms
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
, and 12 of the Charter. Serka was successful in challenging the minimum sentence provision.
Opinion of the Court
Justice LamerAntonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, writing for the majority, held that the sentencing provision violated section 12 of the Charter. He noted that when it came to mandatory sentencing it is very important that deference be given except where it is grossly disproportionate. To assess the provision the court should consider both the gravity of the offence, the particular facts of the case, as well as the offender's personal characteristics. The characteristics are particularly important. Lamer speculated that even a young person caught bringing a single joint across the border will be subject to the sentencing provision. This, said Lamer, would subject the first time offender to cruel and unusual punishment.
On applying the section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
test to the violation, it was found that the provision was rationally connected to the pressing objective of detering drugs importation, but it failed to be proportional. Thus, it was struck down.